Leon Johnson ("Johnson") petitioned for a writ of habeas corpus
under 28 U.S.C. § 2254 ("Section 2254"), asserting the Illinois
Prisoner Review Board ("Board") deprived him of due process by
providing an inadequate statement of its rationale when it denied
him parole in November 1982 (the "November Rationale").
Respondents and Johnson then filed cross-motions for summary
judgment.*fn1

After respondents had filed a brief supporting their motion, in
May 1983 Board conducted another hearing (the "May hearing") and
again denied Johnson parole. In their closing briefs Johnson and
respondents also argued the constitutional adequacy of Board's
May 1983 statement of its rationale (the "May Rationale"), each
side effectively moving for summary judgment on Johnson's habeas
claims as amended and applied to Board's May actions. For the
reasons stated in this memorandum opinion and order:

1. This Court defers ruling on the cross-motions
for summary judgment.

2. Illinois' Attorney General is ordered to report
at the next status hearing what action his clients
have taken in conformity with the legal position he
has asserted before this Court.

Facts

Johnson is an inmate at Pontiac Correctional Center. In May
1971 he was convicted of two 1969 murders and sentenced to 40 to
100 years imprisonment. This Court has been provided no
information as to Johnson's direct appeals, if any, and the
Petition does not attack Johnson's conviction.

Board denied Johnson parole November 17, 1982, following his
fourth annual parole review. Board's official preprinted report
form consists of various boxes to be checked so as to indicate
the decision and supporting rationale. In November 1982 Board
checked only the box indicating "Parole denied, continued to
7/83" (the date being hand-written onto a blank line) (see this
opinion's Appendix I). But it appended a separate sheet stating
its November Rationale:

Johnson (June 27 Mem. 1-2) and respondents (Aug. 1 Mem. 2 and
Ex. A) informed this Court Johnson was again considered for
parole May 18, 1983.*fn3 On its official May 19 report as to that
hearing Board checked only the box indicating "Parole denied,
continued to 5/84" (the date again being handwritten onto a blank
line). But also handwritten on the form are the words "Rationale
to follow" (see this opinion's Appendix II), and appended is a
separate sheet stating the May rationale:

The Prisoner Review Board panel, in addition to
conducting a face-to-face interview with Mr. Johnson,
carefully reviewed all the materials in his file
including, but not limited to, the official statement
of fact, institutional adjustment, and parole plans.

Parole plans were noted by the Panel. Mr. Johnson has
received no disciplinary reports since his last
appearance before the Board in November, 1982. He has
recently been assigned to the Officers' Kitchen.

The Prisoner Review Board panel decides that further
incarceration is needed to insure Mr. Johnson's
continuing institutional stability and to therefore
enhance the likelihood of his conforming to parole
conditions and non-violent behavior in the free
community. Parole is denied and case continued to
May, 1984.

Johnson argues (June 27 Mem. 2-4) (1) the May Rationale is also
defective under Scott and (2) really amounts to a denial of
parole solely on the basis of the facts — and hence the
seriousness — of his offenses. Welsh, 668 F.2d at 330-31 teaches
the Ex Post Facto Clause would bar using the seriousness of
Johnson's 1969 offenses as the determinative factor in Johnson's
parole denial, for citation of that factor derives from Illinois
parole criteria enacted in 1973. Respondents retort (Aug. 1 Mem.
2) the May Rationale passes muster under Scott and Welsh even if
the November Rationale did not.

Exhaustion of Available State Remedies

As a threshold matter the parties argue extensively whether
Johnson has exhausted his state court remedies as to his due
process claim,*fn4 as Section 2254 requires. Rose v. Lundy,
455 U.S. 509, 515-20, 102 S.Ct. 1198, 1201-04, 71 L.Ed.2d 379 (1982).
Johnson argues (1) Illinois courts would not entertain his due
process claim and (2) in any event pursuit of state remedies
would be futile. Petition 5; June 2 Mem. 2-3; July 21 Mem. 4-12.
Respondents contend Johnson can pursue that claim in Illinois
courts via mandamus proceedings. May 4 Mem. 2-4; May 9 Supp.Mem.
and Ex. A; June 10 Mem. 1-2; Aug. 1 Mem. 1-2.

One thing is clear: Our Court of Appeals specifically held in
Welsh, 668 F.2d at 329-30, it would have been futile to seek an
Illinois state court remedy on the ex post facto claim urged by
the petitioner there. For that proposition the Court cited Harris
v. Irving, 90 Ill. App.3d 56, 45 Ill.Dec. 394, 412 N.E.2d 976 (5th
Dist. 1980), in which (1) the Illinois Appellate Court had
rejected that claim as to application of Illinois' 1973 parole
criteria to pre-1973 offenses and (2) the Illinois Supreme Court
had denied leave to appeal. Thus, as to Johnson's ex post facto
claim, there are clearly no available state court remedies (as
respondents admit, see n. 4).

As for Johnson's due process claim, Board can point to no
possible "available" remedy other than a petition for writ of
mandamus. There is an inherent anomaly in Board's advancement of
its exhaustion-of-remedies argument to embrace that remedy in the
present circumstances. Under Illinois law:

Yet Board comes to this Court, stating through the Attorney
General that state mandamus will lie (that is, that Johnson has
the clearest of rights to the relief he seeks*fn5), but still having
deprived him of that clear and unquestioned right — not once but
twice! If Board and the Attorney General are correct, Johnson's
state court petition for writ of mandamus would be a feigned
proceeding, with petitioner and respondents in total agreement
and with no case or controversy thus before the state court. It
would be the legal duty of the Attorney General to confess error
and require his clients to act immediately to give Johnson his
due process rights. See Marino v. Ragen, 332 U.S. 561, 562, 68
S.Ct. 240, 241, 92 L.Ed. 170 (1947) (per curiam).

All this induces a powerful sense of deja vu — of "plus ca
change, plus c'est la meme chose." There was a time when Illinois
was a byword for the frustration of prisoners' rights — when it
had constructed a maze of procedural obstacles to post-conviction
hearings, with nothing except a blind alley at the end of each
path. Whatever avenue a prisoner sought to take, he was told he
had pursued the wrong remedy and must try another route. See
Note, A Study of the Illinois Supreme Court, 15 U.Chi.L.Rev. 107,
118-31 (1947) (written by this Court as a law student); Katz, An
Open Letter to the Attorney General, 15 U.Chi.L.Rev. 251 (1948).
In Marino, 332 U.S. at 562, 68 S.Ct. at 241 it was the Illinois'
Attorney General's confession of error and the Supreme Court's
response (see particularly Justice Rutledge's blistering
concurrence, id. at 563-70, 68 S.Ct. at 241-45)*fn6 that finally
broke the log jam. Indeed the Illinois Post-Conviction Hearing
Act, Ill.Rev.Stat. ch. 38, §§ 122-1 to 122-7, was a direct
outgrowth of that shameful chapter in the State's history.

This case does not present the normal exhaustion-of-remedies
situation, in which considerations of "Our Federalism" and comity
require that state courts be given the first opportunity to
consider whether under the facts the Constitution — which the
state courts are equally bound to uphold — does or does not
guarantee the right a prisoner seeks to invoke. See United States
ex rel. Mitchell v. DeRobertis, 553 F. Supp. 93, 96 (N.D.Ill.
1982). Instead the very availability of the mandamus remedy urged
by the Board necessarily implies (or more accurately guarantees
as a matter of law) Johnson's absolute and unquestioned right to
relief.

It cannot be that the State's highest law officer, charged with
the duty to represent the People in the classic sense, would take
a different stance before a state tribunal (asserting the
nonexistence of a clear right to relief and hence the
unavailability of mandamus). Were such a possibility to exist,*fn7
the teaching of Wilwording v. Swenson, 404 U.S. 249, 250, 92
S.Ct. 407, 408-09, 30 L.Ed.2d 418 (1971) is that there would be
no "available" state remedy required to be exhausted (citations
omitted):

"The exhaustion-of-state-remedies rule should not
be stretched to the absurdity of requiring the
exhaustion of . . . separate remedies when at the
outset a petitioner cannot intelligently select the
proper way, and in conclusion he may find only that
none of the [alternatives] is appropriate or
effective."

As already said, the necessary corollary of the Attorney
General's position is that he will direct his clients
(respondents here) to provide Johnson the relief he seeks in this
Court. "Availability" of the mandamus remedy in the present
context, unlike the "availability" of some other procedures, is
not simply the "right" to file a mandamus action. Because of the
inherent nature of mandamus, it is "available" to Johnson only if
he has the true "right" — the right to relief — and not merely
the opportunity to present a piece of paper to a court.*fn8

In sum the Attorney General's insistence Johnson has a mandamus
remedy has to mean Johnson (1) is correct on the merits and (2)
has an unquestioned right to a parole rehearing and a
constitutionally adequate rationale for Board's actions. It may
be the Attorney General has not thought through the inexorable
significance of his own arguments. It may even be (though this
Court would be loath to make such an assumption) his argument
about "availability" of mandamus is not one of real availability,
but rather a reprise of the kind of lip-service "availability"
(but real-world unavailability) that ultimately led to Illinois'
discredit in Marino. This Court prefers to take the Attorney
General at his word. In those terms the Attorney General
necessarily admits Johnson has an unquestioned right to the
relief he now seeks, and the Attorney General has a consequent
duty to instruct Board accordingly.

This Court therefore defers ruling on the pending motions for
summary judgment. This matter is set for a status report
September 21, 1983 at 9 a.m., at which time the Attorney General
is ordered to report to this Court on whether Board has granted
(or has made arrangements to grant) Johnson a hearing in
compliance with Scott and Welsh.

APPENDIX I

Name Leon Johnson No. C-15276, Pontiac Dkt. No. EF

STATE OF ILLINOIS
PRISONER REVIEW BOARD Date May 17, 1983

To the Warden —

The following order is your authority to release this individual
on parole to the custody and supervision of the Office of
Community Supervision, or continue to hold as indicated. If
parole is ordered, said order is subject to being vacated prior
to release to parole.

? Violated condition(s) ________________________________
______________________________________________________
of your Special Order

? Absconded

? Possessed ? Delivered

? A controlled substance

? A weapon

? Did not comply with your counselor's instructions
to ____________________________________________________

? Failed to report or falsified report(s)

Evidence Relied Upon

? Counselor's Report

? Police Report

? Testimony or reports of witnesses

? Own admission

? See Addendum attached to and made a part of this Order

For The Board

Anne Taylor

L. Dreaklin

P. Klincer

ON ATTORNEY GENERAL'S REPORT TO THE COURT

This Court's August 31, 1983 memorandum opinion and order (the
"Opinion", 571 F. Supp. 270) took the Illinois Attorney General at
his word in contending mandamus is an available and unexhausted
remedy for petitioner Leon Johnson ("Johnson"), thus defeating
Johnson's right to federal habeas corpus under 28 U.S.C. § 2254
("Section 2254"). Defendants were directed to apprise this Court,
by the September 21 status call set by the Opinion, whether
Johnson would therefore be accorded a new parole hearing.

Now the Attorney General has filed a September 19 "Report to
the Court," and he has supplemented that Report with an oral
confirmation at the status call, stating Johnson does not have a
clear right to relief in mandamus. Instead the Attorney General
urges Johnson's mere right to file a paper (a petition for writ
of mandamus), which would by definition be unsuccessful because
Johnson does not have "the clearest of rights to a public
official's performance of an unquestioned duty" (Opinion at 273),
demonstrates the "availability" of the state remedy of mandamus.

By analogy, respondents need a "direct precedent" here to show
the "availability" of Illinois mandamus proceedings on Johnson's
due process claims against Board. On that score respondents have
come up short with the citations they adduce in their support:

3. United States ex rel. Clark v. Klincar, No. 83 C
695, (N.D.Ill. Mar. 31, 1983) concluded (slip op. at
2) a due process parole-denial claim could still be
argued on petitioner's "pending state court appeal."
There is no indication whether Judge Getzendanner
referred to petitioner's direct appeal or to an
appeal in a post-conviction or collateral proceeding.
There is in any event no reference to mandamus
proceedings.

Respondents' most "direct precedent" is United States ex rel.
Johnson v. Klincar, 572 F. Supp. 924, 927 (N.D.Ill. 1983).[fn3a] There
Judge Roszkowski surveyed Abner and other "similar" cases
involving mandamus proceedings against state prison officials
involving various claims.[fn4a] Although Judge Roszkowski decided
petitioner should first test the availability of the state
mandamus remedy, he acknowledged (id. at 7):

No Illinois cases have come to this court's attention
on the issue of whether mandamus is available to
compel the parole board to state the facts upon which
it relied in reaching its determination.

Notably also, respondents have not informed this Court how the
test recommended in Judge Roszkowski's Johnson case has gone.

On the other side of the coin, there is also United States
District Court authority for Johnson's position here. See United
States ex rel. Hurst v. Harvey, No. 79 C 1566, slip op. at 2
(N.D.Ill. Mar. 21, 1980) (Grady, J.); United States ex rel.
O'Connor v. MacDonald, 449 F. Supp. 291, 295 & n. 2 (N.D.Ill.
1978) (Leighton, J.). But the current problem cannot be answered
by weighing and balancing federal authorities. It must always be
remembered that under Perry and its progeny federal courts are
not the creators of state remedies — only the mirrors of those
remedies. What is revealing for this Court is (1) our Court of
Appeals teaches the burden is clearly on respondents to come
forward with "direct precedent" in Illinois state court law for
their contention as to exhaustion of Johnson's due process claim
and (2) respondents have utterly failed to meet that burden.

Thus artificial self-levitation, in the form of counting up
federal cases, will not do the job. There is no "direct
precedent" in the Illinois state cases to meet the
Gray-Perry-Williams requirement. Consequently mandamus is indeed
not an unexhausted and still-available remedy. This Court is free
to turn to the merits of Johnson's contention (for which purpose
the following discussion takes off where the Opinion ended).

Merits

Though respondents are wholly unpersuasive in arguing the
November Rationale meets the requirements of Scott, 669 F.2d at
1191,[fn5a] that is really of no moment. After all, Johnson's only
remedy as to his November Rationale due process claim would have
been a remand to Board for a rehearing. Id.; Welsh v. Mizell,
668 F.2d 328, 332-33 (7th Cir.), cert. denied, ___ U.S. ___, 103
S.Ct. 235, 74 L.Ed.2d 186 (1982). So as a technical matter the
May hearing mooted Johnson's Petition and the cross summary
judgment motions as originally filed.

Mr. Johnson is serving a 40-100 years sentence for
the murder of two young men aged 14 and 17. According
to the official statement of facts, both victims were
executed in an alley, one by pistol wounds to the
head and a shotgun wound in the side, and the other
by pistol wounds.

Thus we are not faced with a carbon copy of what Scott held
fatally flawed in due process terms. But the raison d'etre of
Scott (and Richerson) surely demands more than the May Rationale
gives Johnson. After all there is a reason that due process
requires the furnishing of reasons to a prisoner. That reason of
course is the one Scott (669 F.2d at 1191 n. 7) quoted from Chief
Justice Burger's opinion for the Court in Greenholtz v. Inmates
of the Nebraska Penal and Correctional Complex, 442 U.S. 1,
15-16, 99 S.Ct. 2100, 2108, 60 L.Ed.2d 668 (1979):

The Board communicates the reason for its denial as a
guide to the inmate for his future behavior. . . .
[W]hen parole is denied it informs the inmate in what
respects he falls short of qualifying for parole;
this affords the process that is due under these
circumstances. The Constitution does not require
more.[fn6a]

So it is that Scott, 669 F.2d at 1190-91 makes it plain Board
is not required to cite all the particular evidence for its
stated reasons, but it must state those reasons clearly. Board
must inform Johnson (id. at 1191, emphasis added) "of what in his
record was felt by the Board to warrant his denial and why."
Indeed Board's own pre-printed official form confesses there is
a point acceptable to it on the continuum between (1) stating no
reasons and (2) providing full summaries of all the evidence it
considered. That form provides check-boxes by which to indicate
the specific facts supporting Board's citation of the statutory
criteria for parole denial. Those boxes invite Board to give
Johnson precisely the "essential facts" he seeks and Scott
requires.

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